Why W the mar­riage sur­vey y is an af­front to democ­racy cy

Mis­lead­ing plebiscites deepen di­vides, and our mar­riage equal­ity sur­vey fits the bill

The Australian - - FRONT PAGE - HENRY HEN ERGAS

The con­tin­u­ing cri­sis in Cat­alo­nia high­lights once again the dan­gers plebiscites pose to so­cial co­her­ence and sta­bil­ity. By re­duc­ing com­plex prob­lems to sim­ple ques­tions, they can ex­ac­er­bate di­vi­sions rather than build agree­ment, while wors­en­ing the tyranny of the ma­jor­ity.

That we have re­sorted to one for de­ter­min­ing the is­sue of same­sex mar­riage is a sad re­flec­tion on the state of Aus­tralian pol­i­tics.

To say that is not to deny that the same-sex mar­riage sur­vey is merely a con­sul­ta­tion ex­er­cise, which leaves par­lia­ment with re­spon­si­bil­ity for any change to the law. The re­al­ity, how­ever, is that if the Yes case pre­vails, par­lia­ment will feel obliged to al­low same-sex mar­riage, re­gard­less of whether the leg­is­la­tion ac­cords ad­e­quate pro­tec­tions for re­li­gious free­doms.

The out­come may there­fore be a pack­age that is ob­jec­tion­able in it­self and that might not have been ac­cept­able to most Aus­tralians had they known about it in ad­vance. And, hav­ing un­der­taken this kind of con­sul­ta­tion, the pres­sures to rely on them in fu­ture will only grow, erod­ing par­lia­men­tary gov­ern­ment.

The ten­sions be­tween plebiscites and democ­racy are hardly new. After all, the virtue of democ­racy is not that it yields re­sults we unan­i­mously agree with; rather, it is that its re­sults are ones we can all agree to, even if we dispute their mer­its. They are, in other words, de­ci­sions we prop­erly con­sider le­git­i­mate, de­spite con­tin­u­ing dif­fer­ences about their sub­stance.

Un­der­pin­ning that le­git­i­macy is the as­sur­ance that mi­nor­ity in­ter­ests will be safe­guarded, is­sues will be con­sid­ered as a whole, de­ci­sions will be based on ad­e­quate de­lib­er­a­tion, and de­ci­sion-mak­ers will be ac­count­able to vot­ers through com­pet­i­tive elec­tions.

Viewed in that per­spec­tive, plebiscites have al­ways been sus- pect. In­deed, as his­to­rian Melvin Richter showed years ago, le­git­i­macy, as a term ap­plied to po­lit­i­cal pro­cesses, emerged partly in re­ac­tion to Napoleon Bon­a­parte’s re­peated re­liance on plebiscites as a way of giv­ing a demo­cratic ve­neer to what was lit­tle bet­ter than a dic­ta­tor­ship. Ask­ing ques­tions that were shorn of their broader con­text so that vot­ers could not gauge their full mean­ing, those plebiscites re­placed de­lib­er­a­tion and ac­count­abil­ity with rhetoric and emo­tion.

That ob­vi­ously doesn’t mean that plebiscites have no place in gen­uine democ­ra­cies. Rather, the point is that they need to be han­dled with spe­cial care. Par­tic­u­larly after the end of the Cold War, when it be­came clear that plebiscites would have a sub­stan­tial role in de­ter­min­ing the fu­ture of the for­merly com­mu­nist states, a great deal of ef­fort was in­vested in de­vel­op­ing best-prac­tice prin­ci­ples for their use.

Em­bod­ied in the Venice guide­lines of the Coun­cil of Europe, those prin­ci­ples spec­ify that wellde­signed plebiscites care­fully spell out the ex­pected out­comes of a yes-or-no vote; en­sure bal­anced treat­ment of the is­sues by the me­dia — and es­pe­cially by any gov­ern­ment-owned me­dia — not solely dur­ing the con­sul­ta­tion but in the lead-up phase; and pro­vide those be­ing con­sulted with fairminded ma­te­rial that ex­plains the com­pet­ing views.

The guide­lines also em­pha­sise the over­rid­ing im­por­tance of pro­tect­ing the qual­ity of the vot­ing process, pre­vent­ing fraud, in­tim­i­da­tion and ha­rass­ment.

There are con­sul­ta­tions that fully re­spect those guide­lines. For ex­am­ple, ahead of the 1997 Scot­tish de­vo­lu­tion ref­er­en­dum — which was purely con­sul­ta­tive, as ref­er­en­dums do not fig­ure in the Bri­tish con­sti­tu­tion — the model of de­vo­lu­tion that was be­ing voted on was clearly de­scribed in a white pa­per; and the leg­is­la­tion passed after the con­sul­ta­tion ad­hered closely to that model. The Scot­tish peo­ple there­fore achieved the out­come they had voted on and for.

Equally, Aus­tralia’s con­sti­tu­tional ref­er­en­dums, which in- volve prior par­lia­men­tary ap­proval of the pro­posal and (like their Swiss coun­ter­parts) can be passed only by a su­per-ma­jor­ity, are also a model of ef­fec­tive safe­guards.

It would, how­ever, be dif­fi­cult to claim that any of the best-prac­tice prin­ci­ples have been re­spected in the same-sex mar­riage con­sul­ta­tion. Even their most ba­sic el­e­ments — such as en­sur­ing the in­tegrity of the bal­lot — have been largely ig­nored. And the lack of any com­mit­ment from the gov­ern­ment on the pre­cise leg­isla­tive out­come con­tra­dicts the core prin­ci­ple that vot­ers should know, to the greatest ex­tent pos­si­ble, the ex­act con­se­quences of their vote. No doubt some will dis­miss those con­cerns as se­condary. But scrupu­lous at­ten­tion to pro­ce­dure is the rock on which democ­racy is built. In­evitably, democ­ra­cies find it much harder to deal with deep moral di­vides, which end up re­quir­ing ei­ther-or de­ci­sions, than with “more ver­sus less” con­flicts be­tween ri­val in­ter­est groups. How­ever, the dam­age those ei­ther-or de­ci­sions can do to po­lit­i­cal le­git­i­macy only in­creases the im­por­tance of good de­lib­er­a­tive process.

The in­ter­na­tional ev­i­dence is telling in that re­spect. As French po­lit­i­cal sci­en­tist Lau­rence Morel has shown, the grow­ing promi­nence of is­sues that tran­scend tra­di­tional so­cial and eco­nomic cleav­ages has ex­ac­er­bated di­vi­sions within the ma­jor po­lit­i­cal par­ties, un­der­min­ing their ca­pac­ity to gov­ern. Faced with those di­vi­sions, gov­ern­ments in the ad­vanced democ­ra­cies have in­creas­ingly turned to “division-re­solv­ing” ref­er­en­dums that pa­per over their in­ter­nal dif­fer­ences and get them off the hook.

How­ever, in do­ing so they merely con­firm per­cep­tions that in­her­ited in­sti­tu­tions are not up to the task, fu­elling the pop­ulist wave and boost­ing “anti-sys­tem” par­ties. And when the losers can, with good rea­son, dis­miss the de­ci­sion­mak­ing process as a sham, ini­tial dis­agree­ments are likely to har­den into en­dur­ing fault lines, fur­ther un­der­min­ing so­cial co­he­sion and the ef­fec­tive­ness of the po­lit­i­cal sys­tem.

What­ever its out­come, this con­sul­ta­tion there­fore sets a lam­en­ta­ble prece­dent. Yes, the pol­i­tics of the is­sue within the Coali­tion were aw­ful, and La­bor and the cross­bench cer­tainly didn’t help. But as Ed­mund Burke wisely said: “Every po­lit­i­cal de­ci­sion is a choice be­tween the un­pleas­ant and the in­tol­er­a­ble.” In its at­tempt to avoid the first, the gov­ern­ment has landed us with the sec­ond.

The out­come may be a pack­age that is ob­jec­tion­able in it­self and that might not have been ac­cept­able to most Aus­tralians had they known about it in ad­vance

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